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9CA’s Safe Play


Like a majority — although not all — commentators, I think that Reinhardt’s narrow opinion striking down Prop 8 was probably represented the right way to proceed:

Still, Reinhardt’s decision to go for a solid base hit rather than a home run represents a sound instinct. Kennedy is much more likely to uphold the ninth circuit if he believes such a ruling to be consistent with his own precedents. Forced to choose between a broad, immediate national right to same-sex marriage and upholding Proposition 8, Kennedy is quite likely to choose the latter. Creating a Bowers-like bad precedent would be a disaster, making it much more difficult to successfully litigate in the future – and also, possibly, allowing states to impose more disabilities on same-sex partnerships.

A ruling that immediately gave California’s 37 million residents the right to same-sex marriage and creates a precedent that would likely expand that right to many other, if not all states in the future would still be a major victory. We have to hope that Judge Reinhardt has read Justice Kennedy correctly.

Much more about the costs and benefits of the approach at the link. See also Lithwick.

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  • Josh E.

    How mad is Patterico about this?

    So mad.

    • Scott Lemieux

      Yes, “no principles” except for straightforwardly applying the most relevant Supreme Court precedent. What shocking behavior!

  • sam

    What do you think of Jason Mazzone’s argument that the 9th circuit risks Kennedy’s recognizing a fairly obvious distinction between his opinion in Romer and this case?


    • Spud

      Its not very genuine because it misrepresents the nature of CA’s domestic partnership law and the nature of Prop 8.

      CA already had a situation which was gay marriage in all but name. Prop 8 was just a declaration stating that it was inherently inferior to marriage of straight people. The government essentially using its power to culturally demean a legally recognized relationship.

      Prop 8 was much closer to the discriminatory nature of the laws in Romer than Mazzone is comfortable admitting to. Both involve removing pre-existing rights and protections to explicitly target gays for discrimination.

      Amendment 2 in Romer was far more reaching in effect than Prop 8 was but the intent was identical.

      • sam

        Fascinating…obviously I need to read more about how the previous domestic partnership law factors into this.

      • MAJeff

        Actually, at the time of Prop 8, California had marriage in name. The state’s domestic partnership statutes had been in effect for some time. (Fun fact, under the DP laws, same-sex couples couldn’t marry but had to file for divorce to dissolve their partnership.) In the spring of 2008, the CA Supreme Court ruled that the California ban on same-sex marriage (prop 22) was unconstitutional. So, same-sex couples were actually marrying between that ruling and the passage of Prop 8; 18,000 couples married. Prop 8 removed that right, but kept the domestic partnerships in place.

    • Scott Lemieux

      I will get to this later this afternoon, but I think he completely misstates Reinhardt’s opinion. As I argue in the linked piece, 9CA identifies two key similarities between Prop 8 and Amdt 2, not 1. He’s also way too optimistic about Kennedy being willing to create a national right of same-sex marriage, IMO.

      • Tybalt

        Agreed on the second point. There was no need for a sweeping equality claim here. I like judges that stick to the facts of those who are before them, and while you could walk out on a long limb to repudiate Prop 8 by defending a right to equal marriage on equality grounds, you can repudiate it much better with a straightforward application of stare decisis and apply Romer. That decision is tighter and better.

      • The real strategic point here is to hope the SCOTUS refuses certiorari, and it makes sense to have the narrowest possible rule. I agree with Scott that it is highly unlikely that there is a majority on the SCOTUS for “The 14th Amendment requires same sex marriage”. It’s not even clear there are any votes for that, while it is absolutely clear there are 4 votes against.

        • Scott Lemieux

          Right. It would be a major win for SCOTUS to deny cert, keeping save-sex marriage in California and saving litigation for a more favorable context.

    • Joe

      Marty Lederman knocks down this nicely at that blog.

      Some of the analysis — see Concurring Opinions and Volokh Conspiracy is remarkably clueless and snarky, given some of the more reasonable analysis from these people.

      The “this is all about Kennedy” stuff is nice and all, but going it slow is the basic good policy in movements of this type, and it shouldn’t just be about him. He’s just a representative of the usual swing votes that decide these issues over the years.

  • Richard

    I agree. But why did Reinhardt write the opinion and not Smith. Reinhardt is the most reversed judge on the Ninth Circuit and has written opinions which almost openly defy the Supreme Court. His name on an opinion is almost a red flag inviting the Supremes to reverse… It would have been better for Smith, who doesn’t have that reputation, to write the opinion and have Reinhardt concur

    • MAJeff

      Because Smith dissented.

      • Glenn

        Believe the question should have been ,why not have Hawkins write it. But I think the premise of the question itself — that the particular author would be more of a “red flag” in this case than the decision itself — is probably mistaken.

        • Scott Lemieux

          Someone — Ed Whelan? — called Hawkins an “ultraliberal,” which is pretty funny. Anyway, I don’t think it would have helped to have him write it.

          • big bad wolf

            i think it was actually helpful for reinhardt to have written this opinion. i agree with reinhardt in case after case and yet he makes me hold and shake my head because the invitation to reverse him is writ so large. for reinhardt to show restraint, for reinhardt to link it so closely to romer, for reinhardt to not hold anything more than he needed to, makes this an opinion that thwarts all but the most political cert grant and that allows the opinion’s ideas to percolate through the judiciary. good work, i think.

  • This is one of those issues that seems to be going true to form of a lot of controversial-yet-right issues, like civil rights: enough states enact and enforce new laws, and the weight of momentum knocks any chance for Federal opposition off.

  • Richard

    You’re right. Meant to say why didn’t Hawkins write the decision instead of Reinhardt

  • One thing is for sure. If the SCOTUS does take the case, it won’t matter at all what the lower courts said.

    • Scott Lemieux

      Yeah, I made that argument in a forthcoming rebuttal to Mazzone. If AMK really wants to create a national right to SSM, it’s not like Reinhardt’s opinion will stop him. To the extent that it matters, 9CA endorsing it would be a net negative.

      • I wouldn’t even buy that it would be a net negative. None of the justices are going to make up their minds about same-sex marriage based on whether they dislike a lower court.

  • West of the Cascades

    Nice to see at the Guardian link that John Paul Stevens is still one of the Supreme Court justices. I wonder how he’ll vote when (if) this case comes before the Court?

    • Scott Lemieux

      They should use a picture of the Warren Court in 1965…

  • rea

    Just in terms of the way the court system is supposed to work, judges are supposed to rule on the specific issues before them, and not make sweeping pronouncements of public policy not required by the facts of the case. Judge Reinhardt was not wrong to follow this rule.

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